Tribes now prosecute non-Native offenders, Alaska scrambles to catch up

“I am a Native American statistic. I am a survivor of sexual and physical violence.”

So began a 2012 speech by Tulalip Tribes vice chairwoman Deborah Parker supporting the Violence Against Women Act (VAWA). The man who abused Parker in the 1970s – as well as the men who raped her aunt a decade later while she hid nearby – were never convicted, in part because Native American tribes have long lacked jurisdiction over many crimes committed on reservations.

One in three Native women are sexually assaulted, and 60 percent of all Native victims of violence report their attackers as white. Yet since the 1970s, untold numbers of such crimes have gone unpunished: tribal courts are legally barred from prosecuting them, and federal officials have declined to investigate more than half the tribal cases that come their way.

Tulalip Tribes vice chairwoman Deborah Parker advocates on behalf of VAWA in Washington, D.C., 2012. Image courtesy the National Congress of American Indians.

That may soon change. Last year, Parker stood over President Obama’s shoulder as he signed a reauthorization of VAWA that, among other things, grants Native Americans the right to prosecute non-Natives who commit certain crimes in Indian Country, which includes federally-designated reservations and other lands allotted to indigenous people. The implications of the new law are sweeping, but in the 14 months since it was enacted, tribes have struggled to come up with the money and manpower to exercise their newly acquired rights. Now, under a Department of Justice Pilot Program, three tribes – Washington’s Tulalip, Oregon’s Umatilla and Arizona’s Pascua Yaqui – have become the first in the nation to meet the legal requirements to begin prosecuting non-Natives. Forty additional tribes are in the process of updating their tribal codes to gain the same power.

The Umatilla and Tulalip have yet to make use of the rule, but the Pascua Yaqui made history on March 26 by becoming the first tribe to prosecute non-Natives for domestic violence under the new law. There are currently ten cases in the system; most involve violence against single, indigenous women who live in low-income housing with children. Pascua Yaqui chief prosecutor Alfred Urbina is optimistic that the first successful prosecution will wrap up this summer.

Yet thousands of miles away in Alaska – which has some of the nation’s highest rates of domestic and sexual abuse – the legal recourse to prosecute non-Natives is still a dream. The laws governing Alaska Natives are different than those in the Lower 48, and apart from the 130-square mile Metlakatla reservation, Indian Country simply doesn’t exist in Alaska. So to ensure that Native Alaskans both on and off the tiny reservation were treated equally, Senator Lisa Murkowski inserted a a provision to exempt Alaska Natives from many of the protections from the 2013 VAWA reauthorization. Tribal advocates bash the exclusion as a blow to the safety of women and children: Without the right to prosecute non-Native crimes independently, they say, residents of remote Native villages must sometimes wait days after a violent crime for state officials to be flown in to prosecute.

For that reason and others, the Bureau of Indian Affairs last month took the first step toward creating federal tribal lands in Alaska. The BIA’s draft rule is halfway through a 60-day comment period; if adopted, it would give Alaska Native villages more local jurisdiction and more federal support for tribal police and domestic violence prevention, though it wouldn’t in and of itself overturn the VAWA exclusion. (That, says Indian Law and Order Commission chairman Troy Eid, will take an act of Congress.) Most tribes, along with Alaskan Democratic Senator Mark Begich, support the change, but state officials oppose it, saying they can address the issues internally without turning land over to federal control.

Back in Arizona, Urbina is also working to overcome challenges to implementing the new law. Getting the program off the ground has been expensive, for one thing, and without data on how many offenders there are, it’s been a challenge to ensure the tribe has adequate resources for prosecutors, public defenders, incarceration and other costs. “Unfortunately,” says Urbina, “you may find (under the new system) that you get as much justice as your tribe can afford.”

The Pascua Yaqui essentially had to start from scratch, developing courtroom procedures, training tribal law enforcement officers, coordinating with state and federal officials and rewriting laws. How, for example, would the tribe get non-Natives on a jury pulled from the reservation to ensure a fair trial? What about court translators for Mexican nationals?

With VAWA opponents, the Department of Justice and tribes across the country closely watching Urbina’s prosecution, these are the kind of questions that keep him up. Ultimately, though, he hopes his work will pave the way for other tribes and “bring a fuller measure of justice to all of our reservations.” It won’t be easy, but maintaining the status quo poses a far greater risk.

Krista Langlois is an editorial fellow at High Country News. She tweets @KristaLanglois2.